Coloradans Consider Value Of K9 Alerts In Wake Of Amendment 64

In light of Amendment 64-s language legalizing possession of small quantities of marijuana, Coloradans ponder the shifting evidentiary value of positive drug-dog alerts:

The dogs often are used to find probable cause to search, for example, a suspicious vehicle. A dog is walked around the vehicle to sniff the air next to it, giving an alert signal such as digging at an area of the car if it senses an illegal drug.

But if a police dog has been trained to alert on a substance that is legal, it could be seen as overintrusive.

“This is definitely an area of concern we are looking at,” Larimer County District Attorney Larry Abrahamson said in an email. “Obviously if a dog detects marijuana, it may not be a crime if under one ounce — depending of course on where it is located.

“I am sure DAs and law enforcement agencies will be discussing this over the next few months.”

Since voters in November passed Amendment 64, adults over 21 can possess up to an ounce of marijuana as well as up to six pot plants and whatever those plants yield; anything more than an ounce is to be kept in the growing facility….”

“Fort Collins defense lawyer Derek Samuelson said the dogs’ “highly-developed sense of smell” probably could differentiate between marijuana and other drugs and even quantities of marijuana.

“Even if they have the ability to make those distinctions,” he said. “I seriously doubt that any of those dogs have the ability to communicate to their handler, ‘Hey, it’s cocaine that I’m smelling rather than marijuana, or, if it’s marijuana I’m smelling, (a) quantity greater than what’s permitted under the law change.”

Ultimately it will be up to the courts to decide whether Amendment 64 impacts the use of police dogs for searches.

“This is a really complicated issue, and I think it’s unclear how the state courts are going to interpret Amendment 64 and its impact in state court,” Samuelson said.

Robinson said that because possessing more than a certain amount of marijuana remains a felony, and because it’s still illegal under federal law, he doesn’t foresee a change.

“I think it would hold up,” he said. “Because the vast majority of things they’re trained to detect are still illegal.”

The Weld County District Attorney’s Office declined comment on the impacts of Amendment 64 on drug-sniffing dogs, and Boulder County District Attorney’s Office didn’t respond to requests for comment by press time.

Meanwhile, the U.S. Supreme Court is expected to decide in the next six months on two cases directly impacting the use of drug-sniffing dogs.

Of related interest, how courts will treat attempted forfeitures of currency, where no drugs are found, but a drug-dog purportedly gives a positive alert to currency. Amendment 64 includes language limiting the availability of civil asset forfeiture in instances of lawful personal possession of marijuana and lawful operation of marijuana-related facilities:

(3) Personal use of marijuana. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, THE FOLLOWING ACTS ARE NOT UNLAWFUL AND SHALL NOT BE AN OFFENSE UNDER COLORADO LAW OR THE LAW OF ANY LOCALITY WITHIN COLORADO OR BE A BASIS FOR SEIZURE OR FORFEITURE OF ASSETS UNDER COLORADO LAW FOR PERSONS TWENTY-ONE YEARS OF AGE OR OLDER…

(4) Lawful operation of marijuana-related facilities. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, THE FOLLOWING ACTS ARE NOT UNLAWFUL AND SHALL NOT BE AN OFFENSE UNDER COLORADO LAW OR BE A BASIS FOR SEIZURE OR FORFEITURE OF ASSETS UNDER COLORADO LAW FOR PERSONS TWENTY-ONE YEARS OF AGE OR OLDER…. Amendment 64, Use and Regulation of Marijuana

In instances where no drugs are found but drug-dogs purportedly alert, how state and local prosecutors might persuasively show that dogs were not simply alerting to exposure to legal marijuana is unclear-as is what that might mean. Courts have historically been responsive to the leap of logic that because dogs are good at finding drugs, a positive alert indicates that alerted-to-property is connectable to illicit drug trade-even where no drugs are found and numerous other theories might explain the alert. It should be obvious that the logic is unsound.1 Nonetheless, courts routinely accept the reasoning. Whether that will continue, without curtailment, in a state where adults enjoy constitutional rights regarding marijuana possession and usage, will have to be mapped out.

Also unclear, how federal courts will treat adopted forfeitures where, and if, local police are judged to have seized property without local lawful basis for seizing the property before transferring the property to federal authorities for federal civil asset forfeiture. Equally unclear, where such seizures and transfers are permitted, whether eligibility for federal equitable sharing payments might be impacted due to arguably coercing local authorities to violate Colorado’s Constitution2 and possibly violating federal guidelines requiring local law enforcement enjoy legal authority, under state law, to transfer the property to the federal adopting agency (authority arguably lacking absent authority to seize, continue detention, and/or sufficient control to authorize a transfer):

“A state or local law enforcement agency requesting federal adoption of a state or local seizure must comply with all applicable state laws and regulations pertaining to the transfer of seized property to a federal law enforcement agency, including any requirement for a state judicial order or prosecutorial consent (e.g., declination letter) for such transfer. When required by state law, a state transfer order should be obtained for assets seized pursuant to a state search warrant or a warrantless search to which state jurisdiction has attached. Federal officials should consult with appropriate state or local authorities in adoption situations.” United States Department of Justice, A Guide to Equitable Sharing for State and Local Law Enforcement Agencies.

A similar logic is employed to argue that because drug-dealers purportedly use rubber-bands to organize money, the presence of rubber-bands on money indicates illicit drug activity. Under this reasoning, any activity purportedly engaged in by drug-dealers indicates drug-activity-even where non-drug-dealers also engage in the activity. The confused etiology renders innocent activity probative of illicit activity. A milk carton would, for instance, be probative of narcotics trafficking if drug-dealers were shown to drink milk. ↩

“As an initial matter, Congress may not simply “commandee(r) the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.” Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 288 (1981)” New York v. United States, 505 U. S. 144 (1992) ↩